Frivolous DMCA takedown notices, the latest technique in online pissing matches.

One of the more frequently visited, solo-bloggers about Japan-side expat issues, debito.org, is offline this morning. [Update: The site is back. No more 404 error.]

Out of curiosity, I asked Debito through Facebook what is going on. He tells me that someone named Lance Braman [or someone purporting to be Lance, right?] filed a DMCA complaint with the firm that hosts Debito’s site. [Update 10/8/11: Debito has updated this to make clear that the only connection to Braman is that the DMCA letter was filed regarding Braman’s writings.] The claim is that, since Braman had written two letters-to-the-editor to the Japan Times, and the Japan Times published those letters, that Braman has a copyright claim to those publicly disseminated letters. (This is to say, that he did not give over his copyright rights to Japan Times when he submitted his opinion pieces for publication.)

I am not a DMCA expert–although I am ahead of most lawyers–but the argument sounds totally frivolous. The Japan Times might have a claim, but Braman does not.

To me, this looks like a hoax perpetrated by the Tepido Twelve–as Braman was part of that group until he stopped posting there suddenly a few months ago.

My own view about takedown notices is that you fight them all the way through. You respond to them, and then when the other side does not go forward with their frivolous copyright claim, make sure they are stuck for their action–if the point isn’t clear by then. Almost always, it is.

As someone who was an early adopter on blogging technology, I learned early that the Law hasn’t come as rapidly to internet things as it should. I feel that, inevitably, there will be online, summary, courts for these various disputes that turn up on the net. We don’t need the big corporations like Google or Microsoft determining what the rules will be. We need recognized law—the court system. The trouble is, the court system is underfunded and jam-packed with so-called “real world” matters.

Remember, this critique goes to the right to say, not endorsement of whatever content is said. Both the Debito and Tepido sites have material that I don’t agree 100% with. Where each side is not doing something outside of what the boundaries of free speech would permit, I defend the people’s right to say it.

The idea that someone is going to use frivolous DMCA takedown notices to silence one faction or the other is a situation that we all should pay attention to; and, frankly, not tolerate.

[Update 10/6/11: Ah, debito is back.]

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9 comments

  1. Wilford Brimley · October 6, 2011

    Interesting, since the posts on Tepido seem to indicate it was for his scan of the entire Japanese version of “Little Black Sambo” (and his, personally, very amusing parody “Little Yellow Jap”)…

    GIS still has the thumbs up here: http://www.google.com/search?hl=en&q=little+black+sambo+site:debito.org&um=1&ie=UTF-8&tbm=isch&source=og&sa=N&tab=wi&biw=1440&bih=775

    Of course if LB did do this chances are he learned the technique from CRNJapan and BACHome’s own Eric Klamus and Douglass Berg since they have been using it to attack Tony Delvecchio.

    • hoofin · October 6, 2011

      Mr. Brimley, I think there are nonsense disputes going on in both the Debito-Tepido gang, and between CRN and Tony. Not exactly adult behavior, when all four sites claim to be supporting the same thing — equal protection.

      The DMCA law was put into force for a specific reason: protect copyright. There are many “fair use” and other exceptions, and it is a shame that the focus of all four websites has gone from more serious issues into phony DMCA bickering.

  2. BTDT · October 6, 2011

    According to USC 17, which is US Copyright law, the copyright owner is the person who created the work. Unless the writer signs over all rights to the publisher, copyright is retained by the creator.

    And no, simply submitting a letter for publication in a newspaper does not mean the creator waives their copyright. They retain the copyright and they, not the newspaper, has final say over who can and cannot print that article. Debito knows this as he used it when The Australian asked him to remove a very unflattering article about Gregory Clark that had originally appeared in their newspaper (IIRC, Clark had gone after The Australian for publishing it and they were forced to issue a redaction). However Debito had received written permission from the original author to publish the article, and that trumped The Australian’s claim.

    So as usual, Debito knows the law and uses it when it suits him, decries it when it does not.

    • hoofin · October 6, 2011

      BTDT, I think the issue is more complicated than that. In some cases, if you submit a letter to the editor, you waive your rights of ownership. In other cases, you grant the newspaper company the right to republish. In still other cases, people have a defense because they are relying on your material for comment and criticism.

      If Mr. Braman was the actual DMCA filer (not a punker-as-filer instead), then he has a set number of days to bring his litigation in the proper U.S. District Court.

      I do not believe that he has an enforceable copyright claim over editorial letters that appeared in the editorial section of Japan Times. But that’s just MHO.

  3. Pingback: It’s fun at the D-M-C-A | Tepido.org - Not the Hokkaido Crusader
  4. Ken Y-N (Tepido) · October 7, 2011

    Hi Hoofin,

    Please refer to my recent post – I think someone is stirring things up. I’ll save your site the boring details, but I cannot come up with a good reason why LB would first submit a fake claim about Chibi Kuro Sambo, then one about his own emails. Note that there are still a lot of his own posts up on Japan Probe containing pretty bad stuff, like this one:

    http://www.japanprobe.com/2008/07/01/complaints-about-g8-summit-security/#comment-194609578

    If I were trying to erase my internet presence, that would be my first target, not a letter to the JT, and I’d have done it shortly after deleting my Tepido posts, not 4 months later! Actually, I’ve just noticed that he detatched that post from his Disqus account, but not the reply where he clarifies his statement. Perhaps he didn’t realise he didn’t kill the whole thread?

    My wild guess is that if it really is LB who posted the DMCA notice, he will be sacked. You can ask Mr Arudou for some of the history which I’d rather not report here!

    • hoofin · October 7, 2011

      Ken, you know, this does sound like some big diversion. This is why I include, above, the possibility that it is someone who purports to be Lance.

      Whoever is behind the DMCA filings really should be called to account. As I keep saying, this is the problem with the internet—the Law is often several steps behind the technology.

      My own focus right now is on the true identity (-ies) of the Japan Blog Review writer(s). Please check your e-mail.

  5. tdv1958 · October 7, 2011

    Well, Hoofin, what Debito didn’t tell anyone in his whining rant about the injustice of these DMCA complaint is that he is closely aligned with both Eric Kalmus, Paul Toland, Douglass Berg, et al., (see http://crnjapan.net/The_Japan_Childrens_Rights_Network/itn-ewspblbp.html) all of whom have filed frivolous DMCA complaints against me to try to silence my unfavorable opinions about them. I have been the subject of over a dozen such attacks since I started my humble little blog. None of these complaints had anything to do with their so-called “intellectual” property, and I always provided proper attribution and never tried to claim any of their works as being of my own creation. Seems as though the “civil rights crusader’ only becomes indignant when his barely intelligible blog becomes the subject of such attacks.

    • hoofin · October 7, 2011

      You’ve got me, Tony. I follow the pissing match for a little bit, but I quickly get tired of it.

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